Twenty thousand U.S. troops and an even larger contingent of European peacekeepers were sent to the former Yugoslavia to help enforce the peace agreement reached by the warring parties in Dayton, Ohio. In a decision arising out of the same Bosnia disaster, the Second Circuit Court of Appeals held, in Kadic v. Karadzic, that Radovan Karadzic, then president of the self-proclaimed Bosnian-Serb Republic within Bosnia-Herzegovina, could be found liable for violations of “the law of nations” under the Alien Tort Claims Act (ATCA).

This decision is the first to hold that there is subject-matter jurisdiction under the ATCA for actions in which a non-state defendant is said to have violated the law of nations. Although the decision represents an expansion of the class of persons that can be sued under the ATCA, a review of the case law reveals that certain questions regarding the statute remain unanswered, particularly with respect to the purpose of the ATCA and the type of international law violations for which the ATCA may be used to obtain a remedy.

Background

The ATCA states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATCA has been called a “legal Lohengrin” because its origins are unclear. Interpretation of the broad language of the statute, which was enacted as part of the First Judiciary Act of 1789, is not assisted by the legislative history. As one court stated, “[t]he debates that led to the Act’s passage contain no reference to the Alien Tort Statute, and there is no direct evidence of what the First Congress intended it to accomplish.”

There have been relatively few decisions construing the ATCA, and even fewer in which the courts have been willing to find subject-matter jurisdiction under it. This situation can perhaps be explained by difficulties plaintiffs have had in persuading the courts that all of the requirements for jurisdiction under the ATCA have been met.

First, for there to be jurisdiction under the ATCA, the plaintiff must be an alien. Although this requirement is easily satisfied, an alien may be able to sue in the country where his claim arose, perhaps obviating the need or desire for an action in the United States. Of course, the doctrine of forum non conveniens, requiring United States courts to consider whether there is a more convenient forum for the disposition of the case, applies to actions brought under the ATCA. This doctrine was considered by the court in the Karadzic case, where the court observed that there was no adequate forum in Serbia or Bosnia; the court said that the courts of those states, where the actions complained of occurred, were not available.